373 





aass_LjLl3 



Book 



■:) 



MR. SCOTT'S SPEECH 



/''-' 



OK 



rUE MlSSOYHl QTSESTIOX, 



IN THE 



H^uzt of Reprf!^ *atiies of the United Stales. 



WASHINGTON : 

PRINTED BY DAVIS AND FORCE. 

Pnblishers of the National Calendar. 

1820. 



£"37 5 ■ 



The Quo^iion before the ComiiuUee oi the wliole House 
wa-;. on agreeing to tlie following amendment to the 
Bill, authorizing tlie people of Missouri Territory to 
form a Constitution and State Government, and t'or 
the admission of such State into the Union, on an 
(^quai footing with the original States : 

'•And shall ordain and establish, that there shall he neither slavery 
iior involuntary servitude in said State, otherwise than in the punishment 
<if crimes whereof the party shall have been duly convicted. Provided 
aUvaijs^ That any person escaping into the same, from v.hom labour or 
rf-rvice is lawfully claimed in any otlier State, such fugitive may be law- 
full}' reclaimed and conve3'ed to the person claiming his or her labour, or 
service, as aforesaid. And provided also, Tliat the said provision shall 
not be constrjod to alter the condition, or civil right;, of any person now 
hell t:j service or labour in the s^id Territory." 



Mr. SCOTT'S SPEECH. 



Mr. SCOTT said— it had been erroneously stated, that MisscuiV 
demanded that which slie ought roore modestly to sue for as a matter of 
special grace and favour. In the remarks which he should now have 
liie honour to submit on the subject, he did not wish to be again misun- 
understod by the honourable gentleman from New-York, (Mr. Taylor.) 
or any other quarter. Mr. Scott did not sound the tocsin of alarm— ho 
did not heat up for volunteers in i^bellion against the constituted autho- 
rities of his country— but he should degrade, counteract, and even 
miarcpreseni, the wishes of the people of Missouri, was he to press theit 
claim for admission into the Union, by obsequious supplications, and 
prayers suited alone to the taste and palates of sycophants, or of tyrants. 
Sir, said Mr. Scott, Missouri asks, in the true American character of 
moderation and firmness, your assistance to or;anize her State Covcrn- 
racnt, as preparatory to her admission into the Union. She did not sink 
lierself beneath iiotire, by an affectation of inferiority, met-kuosG, d*;- 
pendence, and submission, which she did not feel, nor did she by any 
rash declarations, or warlike attitudes, authorize the ungenerous insinu- 
ations, that there was in that people a moia! unfitness for seli-govcrn- 
inent. There had been no exhibition of sn. h a spirit of boisterous 
domination, as ought to induce you to shun thoir company, or to avoid 
associating with them as a member of the fciit;ral family. .Missouri 
presented hf-rtelf .with the Constitution of the United States in one hand, 
and the treaty of cession in the other, and asked admission into the Union. 
She exhibited as preliminaries, a long apprenticeship under the guar- 
dianship of your laws ; a moral capacity and fitness in the people for 
self-government; a devoted attachment to the Constitution and laws of 
the land; a firm and fixed republican character ; and numbers sufficient 
to entitle her to two representatives. She 'did not attempt . to deceive 
Congress in refereuce to her territory, or the number of her inhabitants; 
she presented an actual map of the surveys of the country, by which 
a calculation might be made within a few miles of the exact extent of 
her boundaries ; she produced documents in support of her population, 
sufficient to satisfy the most conscientious and scrupulous ; she w as not 
driven to the subterluge of counting her citizens and travellers in every 
■ Tinty throughxuhich they might pass to make Out her pvetonsion? to ad- 



aiission, and then to take off the odium of this deception, to christen the 
transaction with the name of pious fraud, because the great object in view 
was to jump into the Union, and obtain the blessed privilege of dictating 
to her superiors, and her neighbours. Mr. Scott, regretted, that this ques- 
tion had produced so mnch excitement ; he, however, disclaimed the 
responsibility of ultimate measures, because he was acting only on the 
defensive, and was not one of the proposers or supporters of the proposi- 
tion that had caused it. If it was of recent date he would entertain 
some hopes of its short duration. But, for more than one year this ques- 
tion had agitated many sections of this governn»ent; it had mixed and 
mingled with every topic; it had operated on, and even controlled elec- 
tions. He had seen one instance of its powerful influence in an adjoining 
State, and he feared ^similar sacrifices had, or would be made in other 
quarters, of honourable men, for their integrity and attachment to the 
principles of the Constitution. 

Mr. Scott said, that both the advocates for, and those opposed to, 
this restriction, who had preceded him, had divided the subject into 
three heads : the first resting on the Constitution ; the second on 
the the treaty of session; and the third on the expediency of the mea- 
sure. There were other grounds, growing out of the relations of the 
United States, and the Territory of Missouri, that he considered as 
not only connected with, but conclusive on the subject, and which 
he would hereafter examine ; he would however first advert to the na- 
ture of this proposition, which gentlemen had contended they had the 
light to make. Some had dignified it with the name of treaty — some 
with the name of compsct, while others had contended for the broader 
ground — that you have the power to restrict Missouri in virtue of your 
sovereignty over the Territory. On all occasions it was of the first impor- 
tance to understand the question, but more particularly so,, where it 
involved the principles of the Constitution, or the rights of the people. 
It was then either matter of treaty, or compact^ between Congress and 
Missouri, or it was an ordinary act of legislation. 

Mr. Scott contended, that if Congress had the right to impose this 
lestriction, as an ordinary act of legislation by virture of their sov- 
ereignty over the Territory, that then they could not support the ground 
that it was either a treaty or a compact with Missouri. Vattel, in 
his law of nations page 192, section 154, laid it down as a fixed prin- 
ciple, " that public treaties can only be made by superior powers, by 
sovereigns who contract in the name of the state." It was of the first 
importance in every state, that it should be well understood where the 
power of making treaties resided. It was important to the state itself, 
and doubly so as related to foreign governments with whom you are to 
:ieat, Vattel page 193, section 154, said, '' it is ftora the fundamental 



laws of each state, tliat r.-e must learn, where resides the authority that, 
is capable of contracting with vaiidity in the name of the state." B7 
the Constitution, which is the fundamentai hue of the United States, ia 
article second, section second, the power to make treaties was given to thft 
President of the United States and the Senate, and that disposition of 
this branch of the supreme power by the people, bad the unequivocal 
effect of devesting the House of Representatives of this power : not only 
the House of Representatives was deprived of the exercise of this powec^ 
but the two Houses of Congress, were they of one accord, had not the 
power to propose or make a treaty ; and the case in favour of iiis ar-. 
gunient was infinitely stronger, when it was considered, that the Sen- 
ate, who by the Constitution was a component part of the treaty mak* 
ing power, was, as to the question under discussion, actually opposed 
lo its success. Had the Constitution stopped here it would have been 
sufficient for all the purposes of the argument. The 10th section of the 
Ist article, had in express terms, inhibited a !Slaie from " entering into any 
treaty, alliance, or confederation." Was even a Stale to make a treaty, 
it would, upon principles tliat are recognised in Vattel, page 19o, sect. 
161, " be void for want ol sufficient power to make it." And yet a 
Slate, had a constitution or jundamental law. How would the argument 
bear gentlemen out, when it was applied to a mere Territory not abso- 
lutely sovereign, within its own lint'S, and, that had not any conslUw 
lion OT J'undume/itul laic. If Mibsouii had the right to treat with Con- 
gress, it must be in pursuance of her sovereignty; and that same sov- 
ereignly would give her the equal right lo treat with any other power, 
•and which if she was lo attempt to do, he had little doubt gentlemen 
would then, it not before, deny her power to accomplish. He thought 
it was Buificiently elucidated, that both Houses of Congress, much less 
yie House of Representatives had not the power, in shape of a treaty, 
that a o/rt/t liad not the power, and that a Tenitory, possessing even less 
sovereignty ilian a State, had it not. 

Mr. Scott said, that the next ground gentlemen had relied on was, 
that this restriction might be imposed on Missouri, by way of com' 
pad Vattel page 192, section 152, laid it dovn " that treaty, and 
compact are synonymous terms, where perpetuity is the object." This 
restriction was to be fixed, unalterable, eternal — no change of time, cir- 
cumstances, or condition, was to place it in the power of the people 
cf Missouri, to alter this leature in thejx iConstitution. He defintd a 
anr.iact to be an agreement, or contract to do, or not to do, a particular 
thiii^. Again, agreements were eitiier voluntary, or involuntary ; if in- 
•voluntary, (as this would be in reference to the people of Missouri) it 
was competent for the party to avoid it as early as possible. li volun- 
tary, and iiad lor its object ilMt which U^e partus might lawjuU^do, U 



tvas binding — the acquisitiow of power by Congresa, by ^^ay of cocq-- 
pact, or treaty beyond what the people have given them icas not a law- 
ful object ; if it were, Congress might progress in exacting from States a 
surrender of powers until they had accumulated sufficient strength ta 
swallow'^ up the whole. And was any one State disposed to make a 
surrender of anj' portion of its powers, or sovereignty, to the general 
government ? He doubted very much whether, from the evil tendency 
and dangerous example it would furnish, the other States would stand 
by and see it done. Mr. Scott would put the question to gentlemen, 
whether Congress could, by treaty, compact, or law surrender any of 
the powers given by the Constitution for the benefit of the whole ?— 
Congress were but the bankers of the people, to the amount of power 
deposited, and the fund could only be distributed in the shape of laws, 
•when the necessities of their country, or the good of the people re- 
quired. The deposite was so sacred that Congress could not agree to 
diminish it in any way that should counteract the purposes for which 
it was given. Congress could not agree to relinquish the right to un- 
pose taxes on any particular State ; or the right to regulate commerce 
in reference to any one, or all the States ; or give any preference to the 
ports of one State, over those of any other State ; or to give to one 
State more exemptions or a greater representation than her federal con- 
dition entitled ker to. If Congress could not give powers to a State, she 
<5Duld not take privileges away. In fact. Congress could not relinquish 
-its sovereignty on any of the objects over which it is made sovereign by 
the Constitution. By a parity of reasoning a State could not surrender 
by compact, any portion of the sovereignty retained to it by the Consti- 
tution, or which it possessed by virtue of inherent rights ; but if a State 
could relinquish any portion of its sovereignty, it must first be consider- 
ed independent to enable it to do so, and not be in a condition of territo* 
rial dependence. State rights were as fully secured by the Constituiioa 
as the rights of Congress, or of the general government, the law of na- 
tion* and of nature operated alike on the general and State govern- 
iTients. Vattel, in page 6, section 18, says, that " a state or nation ie 
ttbliged to preserve itself, and has a right to every thing necessary for its 
:preEervation." The sovereignty of a State was necessary for its happi- 
ness and preservation, and could not lawfully be diminished by any 
compact. By Vattel, page 10, section 31, " tiie consequences of a good 
or bad Constitution being of such importance, and the nation being 
Eirictly obliged to procure, as far as possible, the best and most conveni- 
ent one, it has a right to every thing necessary to enable it to fulfil fhis\ 
obligation. It is, then, manifest, that a nation has an indisputable rigljt 
to form, maintain, and perfect its Constitution ; to regulate, at pleasure, 
<;yery thing itlatlng to its gorerament ; and that no person can have a 



ju«-t right, td hin(1et it. Government is only established fdr the snke of* 
the nation, willi a view to its safety and happiness." A State was as 
much bound by the Constitution and the law of nature to preserve its 
integrity and sovereignty, in reference to the State, as Congress were, by 
the same Constitution and law of nature, to preserve the integrity and 
sovereignty of the nation. An acquisition or surrender of powers and 
sovereignty, by either the general or a State government beyond what 
the constitution, the law of nations, and the law of man, had pointed 
•ut would be unlawful, and consequently void. 

The confederation of the several States, was, in fact, nothing more or 
less, than an alliance, offensive and defensive; each State was an ally 
in regard to all the other States. Missouri proposed to become one of the 
allies in the confederation; but she did not intend to contract an une- 
«[ual alliance that amounted to a diminution of her sovereignty ; nor 
could she.conLtituiionally do so if she would. Gentlemen had said, 
that this proposition, if acceded to by Missouri, did not amount to a 
din)inution of her sovereignty ; and that, therefore, she might lawfully 
make tlve compact, and Congress might lawfully exact it. Sovereignty 
ia the United States was something more tha« a mere name : it was an 
Mctual condition of a State. Vattel, page 2d, section 4, said — '* any 
nation that governs itself, under what form soever, witheut dependence 
•n any foreign power, is a sovereign stale ; its rights are naturally the 
same as those of any other state." Mr. Scott was well apprized that 
the law of nations (Vattel, p;ige 2d, bcction 5,) recognised in certain 
c-ases, as "sovereign states those wliicli had united themselves to another 
more poweiful, by an unequal alliance, in which to the more powerful is 
S;iven more honour — to the weaker more assibtance." This was pre- 
cisely the case in question — to the general government was given more 
honour, and even more strength — to the state of Missouri more protec- 
cion and assistance. A most extravagant doctrine had been advanced 
by gentlemen, that Congress had the riglit to exact by compact any thing, 
and asient to any condition, provided the State was left in possession 
of sufficient soveieignty to enable it li> regulate its own municipal con- 
cerns ; and that as the State of .vjissouii could exist as a State, shorn of 
this attribute of soveieignty, th:it, therefore, she might, by compact, sur- 
render it to Congress. Mr. Scott denied the soundness, even in theory, 
of this proposition — but, in practice, it was of the most dangerous ten- 
dency ; a State must be always regarded as an inferior ally in irference 
to all the other States in the confederacy. The argument that gentlemea 
drew from the power Congress had to exact tribute, by way of taxes 
from the States, went but very little to supp'at ths pvoicsition, that 
Congress had the power to co . p;)i:t fci M.y ^('itiu . el tue soveiei^i'ty of 
a- State. The payment of tribute, oi taxes, was no evideace of tiie dimi- 



8 

outioa of the sovereignty of a State ; that was a matter to whidi a 
State might consent and still retain all its esseiuialiadependence. V'at- 
tel, page 2d, section 7, said — " For though the payment of tribute to a 
foreign power does, in some degree, diminish the dignity of those States' 
from its being a confession of their weakness, yet it suffers their sove- 
reignty to subsist entire." And, in page 2, section 6 — "that a weak 
state might, m order to provide for its safety, place itself under the pro- 
tection of a more powerful one, and, in return, agree to perform several 
offices equivalent to that protection, without devesting itself of the 
right of gOTernraent and sovereignty." The conditions of these allian- 
ces might be infinitely varied ; but Vattel, page 2d, section 5, had show* 
"♦^that whatever they are, provided the inferior ally reserved to itself the 
sovereignty, or the right of governing its own body, it ought to be con- 
sidered as an independent state." Gentlemen, however, still uncon- 
verted to the great and essential truth in relation to States, that they 
cannot, by treaty or compact, constitutionally, surrender any portion of 
llieir sovereignty, had, with an aif of triumph, asked, where was the line 
to which' they might go without intrenching on the independence and 
sovereignty of the State ? Mr. Scott would answer, from the laws of 
nations, Vattel, page 202, section 175, declared, that *' the sovereignty 
subsists entire and unimpaired when none of its constituent rights are 
transferred to the superior ally ; or rendered, as to the exertion of them, 
<jependent on his will. But the sovereignty is impaired when any of its 
rignts are ceded to an ally, or even if the use of them be merely 
rendered dependent on the will of that ally." The connexion of master 
and servant was a domestic relation — the intercourse between them was, 
>n all the States, matter of municipal law, it had been always considered 
SIS depending on the constitutions and laws of the several States, and 
Hot the subject of foreign control. The relations existed in other 
States, were controlled by their own institutions, without congressional 
interference; it was their constitutional, nay, one of their consiituent 
rigi-ts, to regidate this connexion. Congress, in this particular, were 
making an effort to prohibit the existence of this relation in Missouri; 
they were exerting themtelves to render the exercise of this sovereign, 
constitutional, und constituent right, dependent on their will ; and yet 
gehiierr.en argue, that this is not a compact that will diminish the sove- 
reignty of "vnssojri. 

Mr. Scott was aware that there were cases of absolute necessity, and 
then it was not to be imputed as a crime (Vattel, page 303, sect. 176,) 
under the pressure of which " a Stale would have a right to place her- 
selt in absolute subjection, and renounce her sovereignty if she found 
sucli lueasuresi necessaiy for her preservation — by a much stronger rea- 
son, she has a right, under the saaie uecea&ity to abandon her ailiesr-^ 



But a generous people will exhaust every resource before they submit to 
terms so severe and humiliating.''* The consequence of acting in con- 
formity to this necessity would be, " that all former ^engagements would 
fall to the ground, together with the power that had concluded them." 
(Vattel, 202—3, sect. 176.) Such would be the case in regard to Mis- 
souri — was she to accept conditions that rendered her absolutely depen- 
dent on the will of the general government, all her former and present 
engagements would cease to be binding, because the sovereignty that 
made them so had ceased to exist. 

Some gentlemen, thinking the ground taken by their co-adjutors was 
too broad, had narrowed it down to this — that Congress had a right to 
contract for the surrender of any portion of the sovereignty of the Slate 
of Missouri, provided that such right did not deprive her of, or encroach 
on, her federal rights. One moment's examination of this branch of 
the question would put it for ever at rest. All had agreed, that if the 
proposition went to deprive her of a federal rights that the requisition 
could not be made. Under the Constitution of the United States, sec- 
tion 2d — " Representatives and direct taxes shall be apportioned among 
the several States which may be included within this Union, according 
to their respective numbers, which shall be determined by adding to the 
whole number of free persons, including those bound to service for a 
term of years, and, excluding Indians not taxed, three-fifths of any 
other persons." He desired it to be remembered, that all gentlemen 
had agreed, that Missouri could not be deprived of a federal right : now, 
among many other federal rights, was that of Representation in the 
Congress of the United States, according to numbers, to be calculated in 
pursuance of the article of the Constitution before alluded to ',five negroes 
then were equal to three whites in that enumeration, on which repre- 
sentation was founded ; by the restriction in question, then. Congress 
undertook to deprive Missouri of the means of acquiring a federal right. 
Thus doing, indirectly, what, all agreed could not be directly done, 
Mr. Scott could see no substantial difference between depriving Missouri 
of a federal right or the means of acquiring a federal right. They 
were, both the light and the means of acquiring the right, as regarded 
MirS uri, vested rights under the Constitution, and by no treaty, com- 
pact, or law, could she be constitutionally deprived of either ; and was 
Missouri to contract for this surrender, it would make the alliance, as 
regards her and the other States in the Union, in reference to the whole 
Union, unequal, unlawful — and, consequently, void ; and what would be 
void if done, it was not competent for the parties to do. It was laid 
down by Vattel, (page 203, section 177,) "that every State ought to be 
jsalous of her glory, careful of maintaining her dignity, and preserving 
her independence, and nothing short of the last extremity, or motive** 



10 

the most weighty and substantial, ought ever to induce a people to coii- 
tract an unequal alliance. This observation is particularly meant to 
apply to treaties, (or compacts,) when the inequality prevails on the 
side of the weaker ally, and still more particularly to those unequal 
alliances that degrade the sovereignty. Men of courage and spiii?, 
will accept such treaties (or compacts) from no other hands but those 
of imperious necessity." The restriction in question would degrade the 
sovereignty, because it would diminish the State independence, and 
deprive Missouri of the means of acquiring federal rights; and, in the 
same proportion that the sovereignty of Missouri would be diminished, 
and the exercise ef any of her constituent rights rendered dependent on 
the will of Congress — in that exact proportion would the powers of Con- 
gress be increased beyond those given by the federal Constitution. Mr. 
Scott hoped that it was sufficiently clear, that Congress, neither by 
trtaty nor compact could increase or diminish their powers, nor was it 
competent for a State, by treaty oi compact, to surrender any portion of 
its sovereignty. It next remained to inquire, whether Congress could, by 
an ordinary act of legislation, accomplish the object ? and this depended 
on the powers given in the Constitution. 

The very act of exacting this restriction as treaty, or compact, and 
which required the assent of Missouri, showed that it was a portion of 
the sovereignty of the State that you cannot take away without their 
consent. The Constitution of the United States sets out with this prin- 
ciple — " that all legislative powers herein granted (not inferred) shall be 
vested in a Congress of the United States." But, even was the Consti- 
tution silent as to the disposition of powers between the general and 
State governments, a knowledge of the history how the Constitution was 
formed, would give a strong answer against the assumption of the autho- 
rity now contended for. The framers of the Constitution were jealous 
of State rights, and therefore left nothing to be inferred, against which 
they could possibly provide. The powers of the general government 
were the delegated powers, and not the powers of the States, or tl>e 
rights of the people derived from the federal government — All right and 
authority was inherent in the people; they ahnie were supreme; they 
surrendered a portion of their natural and inherent rights to the State 
authorities, and a portion of the federal government; and the grant by 
them made, was to be construed only for their benefit, and in the ad- 
vancement and protection of their other rights. Congress had no powers 
but those expressly given, or those inferable, as being absolutely neces- 
sary and proper to enable them to carry those given into effect. The 
ninth and tenth articles of the amendments to the Constitution settled 
this question — the first of which provided, that " the enumeration in the. 
Constitution, of certain rights, shall not be construed to deny, or dispar- 



11 



age^ others retained by the people." And the second declared, that 
''the powers not delegated to the United States by the Constitution, nor 
prohibited by it to the States, are reserved to the States respectively, or 
to the people." When, therefore, Congress were about to exercise an 
authority, it was to the enumerated powers in the Constitution that they 
were to look for the right ; if not found there, it did not exist, for all 
other than those, wgre inherent in, and expressly reserved to the States, 
and to tlie people. 

Mr. Scott would not delay the House by attempting a history of the 
causes and formation of the Constitution. It was well known to have 
been a matter of compromise between free, sovereign, and independent 
states ; most of whom, at the time of its adoption, held more or less 
slaves; nor was it reasonable to suppose, that it was within the purview 
or meaning of the makers, that at any subsequent period, It should be 
li'fi to the discretion of either party that might become dominant to im- 
pose slaves on those who had them not, contrary to tiieir wishes — or to 
deprive others who had them, or who entertained a wish to acquire that 
description of property of the discretion to do so. Mr. Scott not only 
denied the power of Congress to proliibit the citizens of any State from 
eiijoying the advantages resulting from the immediate use of slaves, but 
he would, also, repel their pietensions to legislate in relation to the 
increase. Societies, constitutions, and laws, were as much formed to 
secure the faculties and proiluce of property, as for the protection of the 
jinmediate object of property itself. Let legislators destroy this princi- 
])le, and occupancy alone, as in olden times would be the only remaining 
t-videnccx>f property and of right. 

The powers given to Congress by the Constitution were few, express, 
-united, positive, and defined; the majority of them were to be found in 
ihe eighth section of tliat instrument, and consisted in the authority to 
lev}"^ taxes, borrow money, and regulate commerce ; establish an uniform 
system of bankruptcy; to regulate the coin, punish counterfeiting, estab- 
lish post-offices and post-roads, constitute courts, declare war, raise 
armies, niaintain a nav}'^, call forth the militia, organize, and regulate 
them; to have exclusive jurisdiction over the District of Columbia, and 
their forts, magazines, arsenals, dock-yards ; and to make all laws which 
should be neccssarij and proper to carry into effect, the enumerated 
])Owers. Mr. Scott could not discover that the authority to impose re- 
strictions on States, could be derived from any latitude of construction 
growing out of this section. But the powers of Congress \' ere not only 
enumerated and expressed in the Coitstitution ; the tenth section was 
equally explicit in declaring of what attributes of sover^ngnty the States 
should be deprived ; no State was to enter into any treaty, or alliance, 
ijrant letters of marque and reprisal, coin money, emit bills of credit, 



'Pi 

make any thing but gold and silver a tender, pass any bill of attainder, ex 
post facto law, impair contracts, or grant titles of nobility ; nor, without 
consent of Congress, lay imposts or duties on imports or exports, lay any 
duty on tonnage, keep troops or ships of war in time of peace, or make 
any agreement with any foreign power, or even with a sister State, or 
engage in war, unless actually invaded. The States, then, were devested, 
ty the Constitution of no portion of sovereignty but those actually named 
and voluntarily surrendered ; all other powers, and the residue of sove- 
reignty, were inherent in, and expressly reserved to, the States and the 
People. 

It was said, that since the year 1808, Congress had power to prohibit " 
the migration or importation of such persons as the States existing at the 
lime of forming the Constitution, thought proper to admit; and that, 
underihe powers given in that clause of the Constitution, Congress 
might prohibit the removal of slaves to Missouri, both as a Territory 
^nd a State, and impose the restriction. The Constitution of the 
United States not only admitted and permitted, but was partly based on 
domestic slavery ; yet gentlemen said it was contrary to the principles 
and genius of the American government. Although the Constitution in 
but few instances recognised tliem to be free moral agents, but acknow- 
ledged them to be property and not freemen, and guaranteed to the 
master an ownership which his fellow-citizen living in another State, 
and holding different principles, could not legislate from him. ,The 
second section of the 4th article of the Constitution, provided that "no 
person held to service or labour in one State u; • laws thereof, 

escaping into another, shall, in consequence of any law or legislation 
therein, be discharged from such service or labour, but sha^ '^e delivered 
up on claim of the party to whom such service or labour . y be due." 
A sister and sovereign State could not emancipate slaves fleeing to its 
jurisdiction : could Congress, then, do that which the Constitution had 
said should not be done by the independent sovereignty to which the 
fugitive fled? The framers of the Constitution never thought that Con- 
gress had the authority to prohibit the removal of slaves to any State ; 
or that they would pretend to the still more alarming power of legislat- 
ing the emancipation of slaves that were lawfully in, or might flee to 
any State. It was considered as an incident of sovereignty, as a matter 
of state right and of municipal legislation. The only danger was, that the 
States would exercise it to the prejudice of each other; against that state 
of things the Constitution had guarded and deprived the respective States 
of the exercise of that power which they had without such prohibition. 
To make the argument more plain, he would state a case — could Congress 
pass a law operating the emancipation of the slaves in Kentucky, or of 
their increase.^ Or, could Congress pass a law, declaring that if a 
citizen of Kentucky re ^ to Ohio with his slaves, that in consequence 



13 

of such removal his slaves should be free: Or, would it not depend oi\ 
the Constitution and laws of Ohio :* If, then, Congress could not pass 
a law einancipatiug the slaves in a State, or pass a law declaring; that 
their emancipation should be the consequence of renioving them from 
one State to another State — it was not within the scope of his faculties 
to discover how the restriction was authorized by this clause of the Con- 
stitution. But let it, for argument only, be granted, that Congress had 
the power to prohibit the migration of slaves from any other State to 
Missouri, how far would that authority give to Congress the right to 
legislate in reference to the slaves, and the children of slaves, that were 
now in Missouri? The power to prohibit the migration had reference 
alone to the States where the slaves were, and not to Missouri. A 
general law, then, would be most proper, declaring that no slave should 
be removed from one State to another ; and that would be a question of 
restriction for the slave-holding States to submit to, and not the question 
of restriction in regard to Missouri. The term 7nigraiio)i indicated an 
exercise of fiee will, the exercise of which was not to be attributed to 
slaves; and he believed the real meaning of that portion of the Consti- 
tution, was to authorize Congress to prohibit after 1808, that great influx 
of the rabble of foreign countries, who, migrating to the United^tates 
encumbered with their passions and prejudices, might, in the end, endan- 
ger the Constitution and the Union. The term importation, all under- 
stoc.d ris solely intended to provide against the further introtluction, from 
abroad, of the unhappy sons and daughters of Afilca, aud not to give to 
Congress the power to regulate the distribution of those that were here. 

The second section of the fourth article of the Constitution, provided 
that " the citizens of each State should be entitled to all the privileges 
and immunities of citizens of the several States." The obvious mean- 
ing of this clause was, that the rights of the citizens in one State, should 
be equal to the rights of the citizens of any other State, and that so far 
as the citizens of one State had the right to regulate their matters of 
internal policy, so fur should the citizens of any other State have the 
same rights, privileges, and immunities — not only the rights of the citi- 
zens, individually, but their rights taken collectively as States, were to 
be equal in all respects whatsoever. For example — if the people of the 
State of New-York had the exclusive power to make their own constitu- 
tion and laws, and to provide that slaves should, or should not, be in- 
troduced, so the State of Missouri, to be equal in power to the State of 
JVew-York, must possess the same sovereign authority. 

The second clause of the third section of the fourth article, provided 
that " Congress shall have power to dispose of, and make all needful 
rules and regulations respecting the territory or other property of the 
United States." The whole context of this article showed that it wok 

2 



14 

as prcperti^; and not otherwise, that Congress were to make rules 
and regulations. Certainl}' the boldest advocate for restriction would 
rot contend, that Congress had any property in the persons of the 
citizens of Missouri, because they were circumstantially connected 
with a Territory over which they had a limited control. Su.ely 
gentlemen would not undertake to advance the doctrine, that Con- 
gress had any property in the confirmed lands of individuals, or in 
the lands purchased of the government, and patented to the purchaser, 
and still less had Congress any property in the rights of the people. 
Aud if Congress even had the power contended for, v.hile they own<^d 
the land, it would surely cease lo exist so soon as they parted with the 
soil. The sovereignty of Congress over the Territory as the lords para- 
mount, was bttt temporary, and could only endure so loiig as thoy 
retained the soil; when that was disposed of, their sovcreigntv ceased 
also. Yet, by virtue of this brief and temporary authority, limited in 
its extent, and short in its duration. Congress were about to fix on 
Missouri a never-ending condition, that v/as to continue long after the 
authority on which it rested for exif-tence had passed away. If, in 
consequence of owning the land, Cong.css possessed that description 
of sovereignty that would authorize ihem to legislate in regard to the 
})roperty of the citizens of a Territory or a State, or to dictate what 
kind of property the citizens should iniioduce and hold ; then might they 
at this day, undertake to regulate the affairs of the States of Ohio, In- 
diana, Illinois, Louisiana, Mississippi, and Alabama, and their right to 
impose restrictions on each of them, similar to that contemplated in re- 
gard to Missouri would be equally as unquestionable. The whole 
amount of the authority Congress could claim under this clause of the 
Constitution was, to make rules and regulations for the surveying and 
disposing of the public lands, to regulate the quantities in which it 
should be sold, the price, and the credit. But this power was limited 
in its operation to the propcrlt/ alone, and by no construction could be 
extended to the rights of the citizens inhabiting the territory. Congress 
had no power over the right or property of the citizen, but in certain 
cases to levy taxes; ai|d this authority was one of those expressly con- 
ferred by the Conttitution, and v as not alone supported by inference. 

Mr. Scott would now take a short view of the gentlem.en's Gibraltar, 
behind which they had entrenched themselves, and thought they were 
seci re 3ud invulnerable. The third section of the fourth article provided 
that "n^w States may be admitted by the Congress into this Union." 
But, he contended that, they were to be admitted on equal terms, and 
to be equal after admission. When Congress now used the term State, 
it was to be understood as the framers of the Constitution understood 
J^t— they meant a body politic, precisely similar in all respects to those 



that tiien formed the confederacy, and were about to adopt the Consti- 
tution, and become parties in the government. The term State had a 
precise, and, if gentlemen pleased, a technical meaning — its attributes 
were freedom, sovereignty, and independence ; by the principles of our 
government, as recognised by the declaration of American Independence, 
there were no parties, but those determining to be free, concerned, or 
consulted in making that declaration. The exercise of the free will wa-s 
the only act necessary to achieve the moral independence of any people. 
Such had been the fact, in regard to the United States ; and, in point 
of principle, such was still the case. If a new State only become inde- 
pendent by the act of admission, and was not free by virtue of inherent 
rights before admission, then he inquired, when the old thirteen United 
States liad become free ? Was it by the treaty of peace of one thousand 
seven hundred and eighty-three ? No — for the first article of the treaty 
only acknowledged a condition that antecedently existed, and of which 
the conduct and declarations of Great Britain only furnished the motive 
— not the right — for the right v.'p.s from above. Was it by the forma- 
tion and adoption of the federal Constitution ? No — for that Constitu- 
tion was the act of their own free uill, which of itself pre-supposed 
independence as being essential and necessary to make the instrument 
binding. Americans dated their freedom frotn the Declaration of Inde- 
pendence, of the fourth of July, one thousand seven hundred and seventy- 
six. It was then clear, that to be /rcc, sovereign, and independent as a 
a State, it was only necessary to will and to declare so. To mainlhin 
that independence required physical force, and wa« another quettior^, 
into which he would not now inquire. 

. Mr. Scott said, that, as a Territory, the Constitution of the United 
States was but relative to INIissouri; it was only on becoming a State 
that she would incur all the duties, and partake of the full advantages 
of the Constitution. No power could extend the federal Constitution 
over Missouri as a Slate — it recjuired her assent to be freely given — slie 
must ratify and accept of it before it was her Constitution. All its 
force and binding efficacjj was derived from her voluntary act — and 
yet gentlemen undertook to impose a restriction on Missouri ; growing, 
as they say, out of tiie powers contained in the Constitution, when that 
same Constitution was not applicable to the territorial condition of the 
country — nor was she any party to tlie instrument until she became a 
State, and assented to its provisions. To admit a new Stale was not 
solely the act of Congress, it was a compact between the new and the 
old States. The general government was confederated, formed by coni* 
pact between separate and independent States; the parts of which were, 
or ought to be, all equal. Missouri, as a new State, had the right to join 
ti>c cgmpact upon the same terms that others had dene, surrendering 



ojily the same proportion of her inherent and political liberties. To 
make the election to join the compact, she must be considered as free 
and independent ; for, if at the moment of adn)issiou she was dependent 
then the compact would not be binding on her. It was very doubtful 
whether Congress could give the rights of a State to a dependency ; but 
he was quite sure that Congress could not make the dependency inczir 
ike duties of a State, because they depended on free assent, which an 
independent people alone could give. The fourth section of the fourth arti- 
cle provided, that " The United States shall guaranty to every State 
in this Union, a republican form of government, and shall protect 
6ach of them against invasion ; and, on application of the legislature or 
of the executive, (when the legislature cannot be convened,) against 
domestic violence." So sacred v/as the soil and rights of freemen, that 
the Congress could not, wiilioul violating the Constitution, enter the 
uonfines of a State, even to protect them against domestic violence, with- 
out a call from the constituted authorities ; yet Congress were about t© 
break on the lines of the sovereignty of Missouri, trample down the rights 
of the citizens, and inhibit the introduction or use of property acknow- 
ledged by the Constitution of the land to belong to its citizens. Congress 
was to "guaranty to every State in this Union, a republican form of 
government," Independence, as a State, and incorporation into tho 
Union were two distinct things ; the first was inherent, the second required 
The assent of Congress, in giving which assent. Congress were then " to 
guaranty a republican form of government." This was not one of the 
■/wwerSf uiit cno of the duties of Cungress, and the mistake of this duip! 
for a right or power, had produced all this absurd construction of the 
Constitution. " Congress may admit new States into this Union'''' — this 
vlause spoke volumes on the subject : " This Union''' meant the Union 
then formed, and " the State'''' was to be such a State, as was then entering 
into.the Union. If INIissouri was admitted under restrictions and con- 
ditions, that did not exist in relation to any of the States then existing 
it was not ^^into this Union,'''' that Missouri was admitted, but into a 
new Union If Missouri was compelled to surrender more of her privileges 
or a greater portion of her sovereignty, to obtain admission into the 
Union than othei States had done, then, by precisely so much more of her 
privileges and sovereignty as she had to surrender to obtain admission, 
just so much the more did she pay for her admission: and then it was 
not into " this Union" that she was incorporated, but into another Union, 
formed by special compact in that particular case. And thus every State 
that was admitted, might be required to submit to some extraordinary 
condition, until the original principles of the Constitution were en- 
tirely lost, and it would- become a matter of contract, in which each 
;party would make the best bargain they could, and " this Unjon" wiuld 



11 

be no longer *' this t'^nion," nor would the term State be any ioiiger in^ 
telligible, because it would give you no idea of what were its powers, its 
privileges, or its attributes. This argument might be further illustrated, 
by that portion of the Constitution that gave Congress power "to esta- 
blish an uniform rule of naturalization." Congress were not obliged to 
exercise the power at all, but if they did exercise it, they must make tlie 
rule uniform. So, they were not obliged to admit a State, but if they did - 
admit a State, it must be on uniform principles ; for example — Congress 
could not say that the subjects of France should remain in a state of 
probation ten years before they could become j;itizens, and that the sub- 
jects of Great Britain should only remain five years in suspension, be- 
cause this would not be uniform, and would be making one applicant pay 
a greater price for the privileges of citizenship than another. Just so in 
regard to Missouri — if admitted, no greater price was to be exacted from 
her, in becoming a State and entering into the Union, than had been paid 
"by any other State heretofore admitted. And the parallel might be cairied 
further, ('ongress could not say that the foreigner should become a 
citizen, but that after he had become a citizen he should not hold 
land, or any otlier description of property, because that would be 
a condition that would defeat tiie grant, and a restriction incon- 
sistent with citizenship ; which, when acquired, placed him, in all 
respects, on the footing of a natural-born citizen. And so, in regard to 
Missouri, Congress might absolutely refuse her admission; but, if they 
choose to admit, they could impose no restriction inconsistent with her 
condition as a State. Other arguments, and parallels might be shown, 
but he would rest this branch of tlie subject here. 

Gentlemen, still doubting their authority to impose this restriction, as 
derived from the Constitution alone, had resorted to precedent to bear 
thein out : Mr, Scott would also refer to those precedents, and show 
that a large majority ot them were in favour of Missouii, and the residue, 
if precedent at all, could not be so construed in reference to Missouri, 
because tliey were not even analogous. In the act of the Virginia le- 
gislature of 17b9, giving their assent to the creation of a new State in 
the district of Kentucky, there was no condition. lathe act of Congress 
of 1791, admitting Kentucky into the Union as a new and entire State, 
there \sat no condition imposed whatever. The next State admitted 
was Vermont, in 1791, vyheii Congress admitted het as a v.ew and entire 
State into the Union, no restriction or condition was even hinted at in the 
act of admisiion. In the deed of cession irom North Carolina of 1790, 
for that portion of territory which now formed the State of Tennessee, 
an express exception was made in relation to slaves, and Congress were 
prohibited from making any leguluti'iis tlini would tend io llioir emanci- 

■■■■^lilBtaaiHiliiiiiMHiinMiniii^^ 



18 

ted by Congress into tbe Union without condition or limitation, equal iti 
all respects whatever as one of the United States. When, in 1802, 
Georgia ceded to the United States that portion of territory which now 
composed the States of Mississippi and Alabama, she had forecast enough 
to inhibit the application of the ordinance of 1787 to that country; nor 
was there in the act of 1817, authorizing the people of Mississippi to form 
a Constitution and State Government, or in the resolution admitting her 
into the Union, any condition similar to the restriction in question. And 
in the act of 1819, giving the people of Alabama power to form their 
Constitution and organize their State, as also in the resolution for their 
admissien, research might in vain be made for any conditions. Of the 
Stale of Louisiana he would speak hereafter, and would now turn his- 
attention to the great and binding precedents derived from Ohio, Indiana, 
and Illinois, as predicated on the ordinance of 1787. The deed of 
cession from Virginia of 1784, was simply a transfer of the soil and 
sovcreigriiy, and did not contain any stipulation either for or against the 
introduction of slaves; A"ir^inia had not been so provident in reference 
to the future settlements in the North West Territory as North Carolina 
and Georgia subsequently were, because they had the ordinance of i 787 
"before them, and Virginia could not have anticipated a regulation of the 
cliaracter of that ordinance. When Congress passed the ordinance of 
1737, the fifth article contravened tbe provisions of the deed of cession as 
trJ the subsequent division of the territory into States, and when Virginia 
was referred to for her assent to that alteration, she did, by her act of 
1783, consent to that alteration, and that alteration only ; for no other 
•modification of the deed of cession was asked for, nor was any other 
faken into consideration or assented to by Virginia. The sixth article of 
that ordinance of 1737, from which all argunients seemed to be drav.n, 
x>ever did recciTe the consent of Virginia, hut was an ex parte act of le- 
gislation, ordinary in its character, and siirilar to any other act of le- 
gislation except its extraordinary qualities of expansion. It was true that 
the States of Ohio, Indiaua, and Illinois had complied with the provision 
of that ordinance; but it was not in pursuance of its intrinsic binding 
iorce ; it was to be accounted for only on the principle that the ordinance 
io its operation on settlers, while the country was yet a Territory and 
f^ibject to Congressional control, had so regulated the emigration and 
prepared the settlers to comply with the provisions, that in forming their 
Constitutions they voluntarily chose to do so. The old Congress, when 
making the ordinance, had proceeded as in other acts of legislation, until 
they reached the articles of that ordinance ; they then assumed the ground 
that those ailicles should be matter of compact between the United States 
and the people and States north west of the Ohio. But with whom 
ivese thc.^ci articles uuttler of compact ? not with the people, for there 



Seopie, 
■ii 



19 

were but few, if any, there ; not with the State?, for there was not proba- 
bly two thousand people in the whole country, and ihey were hundreds 
of miles apart, in little villages, and knew ^no^thing about it, nor were 
they ever consulted, and had they been, no assent they could have given 
would have bound the inhabitants now there, or the millions yet unborn. 
]Vo sir, it was a compact with the mountains, the woods, and the lakes, 
who were personified and made to consent for inhabitants yet to come. 
But, Mr. Scott said, the most remarkable circumstance was j'et behind j 
the question under consideration was one of the constituti' nal powers 
of Congress, under the CoRStitution. To ascertain what powers 
Congress had under the Constitution which was ratified the 17th Sept. 
1787, resort •was made to an ordinance of the 13th July, 1787, several 
months, in date, prior to the Constitution of the United States. The or* 
diuance was passed by the Old Congress under the articles of confede- 
raiion. The adoption of the Fedeial Constitution was the formation of 
a new government, and an abolition of the old ; and yet an ordinance 
)»assed by the former government was brought up in judgement to ex- 
pound and define the powers of Congress under a new and totally different 
government, under a new Constitution, and new organization. Gentle- 
nien had contended that Congress had revived and ratified the ordinance 
in the act of 18o2, relating to Ohio ; the act of 1816, relating to Indiana ; 
and the act of 1818, in reference to Illinois; these being the acts by which 
Congress authorized those States to form a Constitution and State govern* 
ment. But were he to surrender this part of the argument to gentlemen, 
could it po'-iibly be deduced, that because Congress had revived the or- 
dinance, in reference to any one or all those States, that, by that revival, 
it would have any operation beyond the State actually named and to 
which it was applied? nor had the question ever been made by ^ny of 
those Stati-6 which MiFsouri now made, how far Congress had the power 
to inipose the provisions of that ordinance over a State ; they had taken 
it as a matter of course, because it comported with their wishes and (heir 
will. Missouri did not intend to so take it, because it neither promoted 
her interest or complied with her wishes or her will ; nor did he believe 
that either of those States would row acknowledge that they had not the 
equal ri^bt with any other State in the Union to call a convention and 
so alter their Constitution as to admit of slavery ; and if they had this 
right, the operation of the ordinance upon them as a State was vo d and 
of no avail. The ordinance of 1787, then, was a dead letter, so far as it 
had been resorted to as furnishing any explanation of the powers of Con- 
gress under the Federal Constitution, and it was equally inapplicable, as 
pjecedent in relation to Missouri, because at no period of the Teirilorial 
government had any port. on of its provision been extended to that Territory 

riiiiUlilMiiiiiiMiMiMBiMMiMi^a 



2© 

4tb June, 1802, when the second grade of government had been confer- 
red uporn Missouri. 

Of the eight States of which Mr. Scott had spoken, and that had been 
incorporated into the Union since the adoption of the Constitution, five 
of them were admitted as slave-holding States, and the other three as 
non-slave-holding States. Louisiana, of which he would now speak, 
was, though not in order of time, the ninth. And arguments had beea 
drawn from the law of 1811, authorizing her to form a constitution and 
State government in favour of the restriction, an*l prejudicial to the sover- 
eigiiUr of Missouri. The argument of gentlemen could gain no strength 
ky referring to that law, because it expressly excepted Louisiana from 
the operation of the sixth article of the ordinance of 1787, in lelation to 
slaves. And in fact, as early as 1803, when a temporary government 
was provided for that portion of country now included in the State of Lou- 
isiana, and the ordinance 1787 extended to them, the sixth article of the 
ordinance was not considered applicable to their condition. Every re- 
striction imposed on the State of Louisiana, were precisely those con- 
tained in the Constitution of the United States, with the exception of 
that clause that required them to publish their laws and judicial pro- 
ceedings in the English language ; this provision did not deduct from their 
sovereignty, and was only shaping their laws and proceedings so as to 
give them "full faith and credit" in the other States in the Union. Con- 
stitution U. States, art. 4. sec. 1. A precedent to be binding ought to be 
a decision made in some similar case ; none had been produced, nor did 
any exist. The ordinance of 1787, was passed while that country was in 
the first grade of government — Missouri was in the second grade. Congress 
bad conferred on Missouri the right of self government in all respects what- 
soever, nor did he know of any instance in which Congress had inter- 
fered after such a transfer of their powers. Then of the nine States 
»hat had been admitted into the Union since the adoption of the Federal 
Constitution, six had been admitted as slave-holding States, and three 
as non-slave-holding States; the precedents, then, if of any force, were 
two to one on the side of Missouri. 

But Mr. Scott said, there was no absolute necessity to hang any 
longer on the Constitutional ground. It was unnecessary to argue 
from the Constitution, or from precedent as alone applicable to Mis- 
souri. All the powers Congress had over the Territory was derived 
from solemn treaty, and that same treaty, gave, guarantied, and secur- 
ed the rights, liberties, religion, and pioperty of the citizens, and he be- 
lieved that the obligations Congress were under to fulfil those engage- 
ments, in reference to the Territory was as strong as their right to the 
countrv under the treaty; and a delay unreasonable in itself, or anul- 



21 

jiiight fairly be constfuta to be tantamount to an abandonment of the 
counlry ceded. The stipulation, that the Territory and inhabitants 
should be incorporated' into the Union, was concurrent with the act of 
acquisition, they formed part of the same compact. When the province 
was acquired, it was made a question whether the United States could* 
constitutionally, purchase and hold foreign teiritory ; that question being 
conceded, and settled in the affirmative, it only remained to inquire 
how tlie government would hold the country acquired, whether the 
territory should be admitted as States in pursuance of the treaty, or 
whether it should be held as provinces in vassalage. 

Mr. Scott said, that the people of Missouri relied with perfect confi- 
dence for admission into tlie Union on the 3d article of the treaty of the 
30tii of April. 1803, the words of which were " the inhabitants of the 
ceded teiritory shall be incorporated into the Union of the United 
States, and admitted as soon as possible according to the principles of 
the Federal Constitution to the enjoyment of all the rights, advantages, 
and immunities of citizens of the United States, and in the mean time 
they shall be maintained, and protected in the free enjoyment of their 
liberty, property, and the religion which they profess.'* Various inter- 
pretations had been given to this article of the treaty by the advocates 
of the restriction, some had taken the broad ground, that it contained no 
stipulation for admission as a State in any way. Others had said that 
the treaty, in reference to the people would be fulfilled by giving them 
leave to remove east of the Mississippi river, leaving all their property 
behind, and there mixing, mingling, and becoming incorporated into the 
Union, with those who reside on a part of the old territory of the United 
States ; while others had contended that Missouri could only be incor-- 
porated into the Union, by being attached to some portion of the an-^ 
cient territory of the United States ; and others had argued that the 
provisions of the treaty only related to the citizens in the province at 
the time of acquisition, and did not inure to the advantage, or secu- 
rity, even of your own citizens that had removed to the Territory since 
the treaty. And, to crown the whole, some reasoners more bold than 
others, contended that if the treaty did contain stipulations for admis- 
sion as a State into the Union, it was not binding because the president 
and Senate could not make a treaty to bind CojMp-ess. He would not 
follow gentlemen through all the mazes in w hich they had involved them- 
selves, but would briefly examine, what obligations Congress were un- 
der by the treaty — what rights the people had under the treaty — what 
was the fair construction and interpretation, honest statesmen would 
give the treaty — and v/hat appeared to be the evident intentions of the 
parties, 



^2 

Mr. Scott bopecl il was not necessary for him to impress on AmericSu 
siatesmen, the inviolable faith that ought be observed in reference to. 
treaties in the civilized world. Vattel, page 129, sect. 219, seemed to won- 
der that any man should think, or act without regard to them — " who 
can doubt that treaties are in the number of the^ things, tliat are to be 
held sacred by nations? By treaties the most important affairs are de- 
termined ; by them the pretensions of sovereigns are regulated ; on 
(iiem nations are to depend for the acknowledgment of their rights, and 
the security of the dearest interests. Between bodies politic, between 
sovereigns who acknowledge no superior on earth, treaties are the 
only means of adjusting their various pretensions; of establishing fixed 
rules of conduct; of ascertaining what they are entitled to expect, 
and what they are to depend on. But treaties are no better thaa 
empty words, if nations do not consider them as respectable engage- 
ments, as rules which are to be inviolably observed by sovereigns, and 
held sacred throughout the whole earth." And Vattel continued, in the 
same page, section 220, that " the faith of treaties, that firm and sin- 
cere resolution, that invariable constancy in fulfilling our engagmente, 
of which we make profession in a treaty, is therefore to' be held sacred 
and inviolable between the nations of the earth, whose safety and re- 
pose it secures ; and if mankind be not wilfully deficient in their duty 
to themselves, infamy must ever be the portion of him who violates his 
faith." He did not wish to see the charge retorted on his government, 
that had been so correctly made by her in regard to Spain. To disre- 
gard the treaty under which lulssouri claimed admission into the 
Union, would be a double breach of faith, first as regarded the power 
with whom it was made, next in lelation to the ])eople of Rlissouri for 
whose exclusive benefit the third article was introduced. Vattel in the 
same page, section 231, declared that " he who violates his treaties, 
violates at the same time the law of nations ; for he disregards the 
faith of treaties, that faith which the law of nations declares sacred, 
and so far as depends on him, he renders it vain and ineffectual — dou- 
bly guilty, he does an injury to his ally, he does an injury to all nations 
and inflicts a wound on the great society of mankind." Mr. Scott call- 
ed on gentleman to know if they were prepared to bring this charge oa 
their government, or to sustain it themselves ? Were gentlemen ready to 
sport with the engagements of the nation, and set the faith of treaties at 
defiance, by subjecting theui to whimsical and constrained constructions 
cot recognised by the laws of nations, and in opposition to the plainest 
dictates of common sense. He believed he had even sufficiently esta- 
blished the indispensable necessity of keeping promises, alike interesting 
to the coiitractiiig parties, and to the universal society of mankind,. 



23 

But the intention an»? meaning of the treaty of cessiou, had, wirU 
geui'^nien v.i id%our of the restriction, become matter of great doubt. 
The raeanii^g of the treaty is said to be involved, and the words used 
obscure. Vattel, page 249, sect. 273, said that " words are only desig- 
nated to express the thoughts, thus the true signification of an expression 
in common use, is the idea which custom has affixed to that expression. 
It is then a gross quibble to affix a particular sense to a word, in order 
to elude the true sense of the entire expression.'' The word " incopo- 
rate" had been said not to mean admission as a State into the Union. 
Had the'law of nations and the known rules of construction been silent, 
the plain and common sense of every man would teach him what was 
the intention of the parties to the treaty, from the " entire expression," 
it was not fair to select a single word from a whole sentence, and on 
tiiat alone to bottom what the co struction of the whole sentence was, 
or ouglit to be. Vattel, page 249, sect. 274, declared that "all these 
pitiful subtleties are overthrown by this unerring rule ; ivheii ire evidently 
see ickat is the sense that agrees uith the intention of the contracting 
parties, it is not allowable to wrest their words to a contrary meaning^ 
Ihe intention sufficiently known, furnislios the matter of convention ; 
what is promised and accepted, demanded and granted." What then 
vas tiie true and legitimate understanding of bt-ing "incorporated into 
the Union of the UnitecT States." Did it, as some gentlemen supposed, 
furnish the people with the privilege of removing from the territory, from 
their property, and their homes, into Illinois, for example, and there of 
being incorporated as citizens of the United States, as a part of the State 
of Illinois into the Union ? And would this comport with that part of the 
Ifciity that secured to the inhabitants tlieir liberty and their property ? 
this would be a passing strange construction of the treaty in fact, to pro* 
vide for maint^jining the citizens in the full enjoyment of their " property," 
which, to obtain the advantage of incorporation into the Union, you 
secure him the " liberty" to leave. A construction, such as the one con- 
tended for by gentlemen, would not only operate the greatest injustice, 
and that we were not at at liberty to suppose a just notion would do, 
but would lead to an absurdity which we ought always to avoid. Vattel, 
page 252, sec. 282, said " Every interpretation that leads to an absurdity 
ou^/it to be rejected, or in other words, we should not give to any piece 
a moaning from which any absurd consequences would follow ; but must 
interj)rf t it in Euch a planner as to avoid absurdity," he could not resist 
the conviction, that an interpretation which required of the people of 
Missouri to abandon their property, to secure their liberty as citizens, 
under the treaty, or that forbid their admission into the Union, but in 
conjunction with some potlion of the ancient territory, was in the lan- 
gtiage of Vattel, " a grow quitbfe" and an "absurd construction," not 



24 

uithin the intention of the parties to the treaty, which intention, to all 
cases of naiif iial and municipai law^ was always to be regarded in con- 
struing the instilment. 

Mr. Scott said, that this great rule of construing the instrument with 
Tcference to the intention of the partiss, was laid down by Vattel, page 
258, sec. 291, " to defeat the pretexts and pitiful evasions of those who 
endeavour to elude laws or treaties. Good faith adheres to the intention^ 
fraud insists on the terms, when it thinks that they can furnish a cloak 
for its prevarications." The fatal results that would accrue to the rights 
flf one party, was it left for the other to put such construction as 
suited his interests and views on the instrument, was too apparent to 
require elucidation. Vattel, page 245, sec. 265, gives it as a "general 
maxim, or principle, on the subject of interpretation, that neilfier the one 
nor the other of the parties interested m the contract, has a right to inter- 
pret the deed a/'cordins; to Ids own fancy. "^^ Nothing could be more clear 
than the propriety of the rule, was it competent for one party to disre- 
gard the intention, and put such construction on any instrument as com- 
ported with his views of policy or his "fancy.'' It would result in this, 
that having the liberty of affixing such meaning as you please to my 
promise, you would have the power of obliging me to do whatever you 
choose contrary to i^' intention, and beyond my real engagements; 
while, on the other hand, if I am allowed to explain my promises as I 
T)lease, I might render them vain and illusory, by giving them a meaning 
quite different frdm that which they presented to you, and in which you 
must have understood them at the time of your accepting them. Neither 
Missouri nor Congress, had the exclusive right of interpreting the treaty- 
tinder which Missouri claimed admission. He was, however, willing on 
■ the part of Missouri, to abide by that construction which those rules 
would furnish, that had been established and practised on, long anterior 
to 1803, and he had no hesitation in saying that the people he repre- 
sented, would abide by, and redeem his pledge, on this, to their* the most 
important of all subjects. 

Mr. Scott would not state it as his own opinion only, but would sup- 
port it by another reference to the law of nations, Vatel, page 245, sec- 
tion 226, that "on every accesion.when a person could and ought to have 
made known his intentions, we are to assume for true against him what 
he has sufficiently declared :" this was an incontrovertible principle, and 
was equally applicable to every description of agreement, whether in its 
character of a public or private nature, it was a duty which both indivi- 
duals and states owed to each other, who did not mean to make a vain 
play of words, to express themselves with truth, and according to their 
real intentions ; were it otherwise it would be perfectly useless to form 
contracts or treaties, if the meaning could be clearly collected from the 



Viiole tr-;^\or of the instrument, we were to take that as his evident inte'ii- 
tions. Vattel, page 246, section 26S, said that " in the interpretation of 
a treaty or of any deed whatever, the question is to discover what the 
contracting parties have agreed upon, to determine precisely on any par- 
ticular occasion what has been promised and accepted ; that is to say, 
not only what one of the parties intended to promise, but also what the 
otiier mu£t reasonably and candidly have supposed to be promised to 
him, what has been sufficiently declared to him, and what must have 
influenced him in his acceptance." He incjuired of gentlemen whether, 
honestly and candidly, it was not sufiiciently evident from the whole te^ 
nor of the treaty in question, that the United States had promised to ad- 
mit the ceded territory into the Union as States; and whether that did 
not appear to be one of t!ie conditions of the acceptance of the terms, 
and the transfer of the countr3\ Gentlemen had made the inquiry — "on 
the words of which of the parties was the greatest stress to be laid? " Ho 
was preprired to give, from high authority, a conclusive answer to this in- 
terogatory. Vattel, page 245-6, section 267, said "it is very certain 
that in order to discover the true meaning of the contract, attention ought 
principally to be paid to the words of the promising party, for he volun- 
tarily binds himself by his words, and we take for true against him what 
h*J has sufficiently declared." The United States had voluntarily promised 
to "incorporate the inhabitants of the ceded territory into the Union of 
the United States," and we were to take for true that such was the under- 
standing of the parties to the treaty, and upon this ground the people of 
Missouri claimed admission into the Federal Union as a State. 

Mr. Scott would not enter into the argument whether the President 
and Senate could, by treaty, bind this House to the performance of any 
engagements; vhether the treaty-making power could or could not lay 
Congress under obligations vas an abstract proposition, and not the 
question under consideration. The treaty under which Missouri claimed 
l.'cr riglits had not only been made by the constitutional and competent 
authorities of the nation, but had actually received the sanction of this 
House, and of every branch of the government in every practicable way. 
Various acts of Congress had been passed appropriati'.g money to carry 
the treaty into effect, to authorize the President to take possession of the 
country, to establish territorial governments within the territories — Ifdng 
them from grade to grade of government, until Louisiana had, in pursu- 
ance of the treaty and of the promise contained in the act of the second 
of March, 1305, been admitted as a State into the Union, even without 
any restriction in relation to slavery, and Missouri had now come pre- 
pared to take the same step ; and, however valid the objection of gentle- 
men might have been at an early day, before Congress had acted in re- 
gard to the treaty, it was now too late to make the objection^ after 911 

3 



''26 

ijniibnn concunence of various acts of legislation, acknowledging the 
binding force of the treaty for eighteen years. 

The treaty then, having been made by the constituted authorities ot 
the country, having received tiie uniform sanction of the national legis- 
lature, and being, in its object and terms, sufticieiltly clear, the only 
remaining question on this head was, what obligations the government 
were under by the treaty, and what were the rights of* the people of 
Missouri. V'attel, page 19G, section 164, said " as the engagements of a 
treaty impose on one hand a perfect obligation they produce on the other 
di perfect right. The breach of a treaty is therefore a violation of the 
perfect right of the party with whom we have contracted, and this is an 
act of injustice against him." The obligations on the part of Congress, 
under this valid treaty were 'perfect' or absolute, the rzg-Zf/s of the people 
of Missouri were also /jer/tc/, in contemplation of the parties and the 
law of nations; t!iey had the real and indubitable right to require the 
fulfilment of the engagement, a refusal was a violation of the right, and 
of the original obligation ; there would no longer be any security in the 
commerce or contracts between mankind, if the faith of proiinses were 
not regarded in relation to each other; the security, the hajpiness, the 
tranquillity of the whole human race depended on justice, and the regard 
that was paid to the rights of others. The rights of the people of Mis- 
souri, under the treaty, were not limited to the bare admission as a State 
into the Union, its provisioias extended to securing them in their actual 
possessions and the rights of property ; their right to ask, nay, even de- 
mand admission into the Union as a State, so soon as they had numbers 
bufficient to entitle them to a repressntation on the floor of Congress, 
was perfect, and, he hoped, v.ould not be evaded or refused. 

Mr. Scott would now proceed to show that, whatever might have been 
the original power of Congress over the liberties and property of the 
people of Missouri, they had parted with that power, and confirmed the 
people in all their riglits ; and that Missouri had the right, both on the 
ground of written law and custom, to declare exemption from the restric- 
tion in question. The act of 1803 authorized the President to take pos- 
session of the countvy, and to fix a temporary government ; and that act 
showed that Congress, at that time, felt something like a due regard for 
the rights of the people and the obligations of the treaty; for it had au- 
thorized the President to employ all means, including military force, to 
maintain and protect the inhabitants in the free- enjoyment of their liberty, 
jtroperty, and rdigivn, using the express words of the treaty of cession. 
The act of 1804, by which the province was divided into two Territories 
and a temporary government establislied for each, so far as regar.:ed 
Missouri, extended the powers of the governor and judges of Indiana 
over t|pat Territory, and gave them full legislative poicers, but re- 



quired that all the laws which might be passed should be tiansnatted 
and laid before Congress. When those ofBcers went to the territory 
they found it ftdl of slaves, and one of the very first laws they ever en- 
acted, on the first of October, 1804, was that regulating slaves; this law, 
regulating the relations between master and servant, was reported by 
the governor and judges to be laid before Congress ; and, as it might be 
out of order to say that Congress had not done their duty, he was at li- 
berty to conclude that they had passed on, and approved of the statute. 
This law had laid open to government the actual condition of the coun- 
try; and although Congress, with a full knowledge of this fact, had again, 
as early as the third of March, 180j, legislated in regard to the territory, 
yet it had never entered into their views to interfere on the subject; on 
the contrary, the 9th section of the act of 1805, expressly confirmed and 
sanctioned all laws in the Territory at that time, of which, that regulating 
slaves was one, so that we were no longer left to infer the consent of 
Congress to the territorial law of 1804, as regarded slaves, but were at 
liberty to state that Congress had solemnly recognised this description of 
property, and the light of the people to retain and regulate it. In fact, 
the 13th section of the law of Congress of 18U4, had recognised and con- 
tinued in force all the laws of the territory at the time of acquisition, 
until the same should be altered, modified, or repealed, by the local le- 
gislature. All the Spanish and French laws, written and unwritten, had 
lecognised the rights of the people to have slaves, and Congress expressly 
acknowledged their validity and binding force. The act of 1804 had 
made a distinction between the territoris of Orleans and Louisiana, (now 
Missouri:) the 10th section of tliat law had prohibited Orleans — first, 
from importing slaves, second, from introducing those impoited after 
1798; and, tliereby, against all introduction except by actual settlers. 
But those provisions were confined to the Territory of Orleans, and never 
were extenried to the upper Territory; it was so much more inland that 
Congress believed it unnecessary to make any provisions on the subject, 
and the upper Territory was left to act according to her own discretion. 
The two acts- of Congress of the second and third March, 1805, had made 
another distinction that was favourable to the pretension of Missouri : 
by those laws the omnipotent ordinance of 1787, with the exception ot 
the 6th article, was extended to Orleans ; but no part, or clause thereof, 
had ever been extended to Missouri ; and the honourable gentleman 
from New-Hampshire, (!VIr. Claggett,) was vastly mistaken when he 
supposed that the ordinance was ever extended to Missouri, either by 
positive law, or the inference he had drawn from the powers of the go- 
vernor and judges of Indiana having been extended over the Mississippi. 
It certainly could not be sound reasoning to say, that because those- 
officers, whea in Indiana, were subject to the operation of the ordinance. 



28 
\ 

iHat when they crossed tlie Mississippi, they had canied it on their 
shoulders and packed it on the people of Mis-souri. Orleans, however, 
notwithstanding the inhibitions in regard to the introduction of slaves 
contained in the act of 1004, and the extension of the ordinance by the 
law of 1805, had been admitted into the Union as a State without any 
Restriction ; and Missouri, although never subjected to any restriction or 
c.ontroul in relation to slaves, was now for the first time, after a lapse of 
Eighteen years, during all which time, every encouragement had been 
given, and the tenor of every act, run counter to the present preten- 
tions, to be apprised of this disposition on the part of the government, 
and supended from the Union if she refused to comply. All the laws to 
which he had referred, were passed during the time the territories were 
in the first grade of government ; and in each act. Congress seemed to 
have reserved something like a superintending power over the territorial 
laws, by having required copies of all their acts to be transmitted to be 
laid before Congress. But the act of 4th June, 1812, establishing the 
Missouri Territory, and giving the second grade of government, had drop- 
ped this and all other provisions, indicating any thing like a superintend- 
ence over the laws of the Territorj', and had given to the local legislature, 
all legislulive powers without reserve. This act had given to the execu- 
tive, all the powers possessed by the executives of the States, and even 
more, for the governor had, in addition to granting pardons for offences 
against the Territory, the power to grant reprieves for crimes against the 
United States. This law had regulated the representation, and based it on 
the free lohite population of the country ; thereby acknowledging that 
Congress were well apprised of the existence of other than fi-ee whites in 
the Territory. This act, in addition to the treaty, naturalized the citi- 
zens and regulated their privileges ; and again declared that free white 
males alone should be eligible to offices, and competent as jurors. It 
gave to the legislature the right to regulate the rules of its own proceed- 
ings, freedom from arrest, and from question elsewhere, and all and abso- 
lute powers of legislation, excepting and reserving none; and again con- 
firmed all laws in existence in the Territory op to that time, of which 
that regulating slaves, as formerly, was still one. The 14th and 15th 
sections of the act of 1812, contained all the provisions, that now formed 
the propositmis to the State, in the law under consideration ; they were 
all the people had notice of, or had the right to expect Congress would 
require, at the time of their admission, and, he believed. Congress could 
reasonably ask o'r constitutionally impose. 

Mr. Scott would now endeavour to point out some of the absurdities 
and inconsistencies growing out of this sweeping doctrine of gentlemen. 
The lovers of this country ought to remember that the general government 
were gradually assuming authority, and increasirig the latitude of con? 



29 

stiuction. Did members understand what Misgoiui required of Congress f 
She did not ask a magna charta, or to have a bill of rights dealt out to 
her, for she had both in the Coiistitution of the land, and in the treaty of 
cession — she only asked of Congress the mere means of organization. 
Missouri might do, by her local legislature, what she desired Congress 
now to do ; she might authorize, by virtue of inherent right, the election 
of members to a convention ; and that convention, when met, might form 
a constitution — she might do all this, and produce the patriotic State of 
7'ennessee and others, as an example. The only difficulty that could 
exist in this course, would be that of boundaries; ibin the one hand, all 
the people intended to be included within the State might not be repre- 
sented in convention, on the other, the convention might, in part, be 
composed of members, some of whom might not ultiniately fall within 
the State boundaries. It was not by virtue of any grant from Congress, 
that the people of Missouri derived \\\cu rigid to form a constitution : if 
it was, then it would be competent for gentlemen to agree that Congress 
could impose conditions in making the grant. The leading spirit of all 
American institutions, nay, the essence of American liberty was, tiiat 
the people had the inherent right to make, mend, alter, change, and 
modify their own form of government. Mipsouri, then, only asked the 
assistance of Congress in calling a convention^ and not to dictate what 
that convention should do when assembled. But in affording this assist- 
ance, which was mere matter of form, Congress were undertaking to 
attach to it matter of substance, and to regulate the State of Missouri, 
liud that ton, permanently and for ever, on one of the most important 
points of internal policy. 

It might be important on tiiis question to clearly understand what was 
a constitution. Mr. Scott would define it to be, a fundamental law, es- 
tabliiihing a form of government, defining its parts, its powers, its rela- 
tions, and its duties, being paramount to, and even controlling the legis- 
lature. The power that bound a legislature must be sovereign: the 
authority that made that a constitution was sovereign powerj'and ought 
to be above all human control. But if Congress Tiad the authority both 
to bind the legislature of Missouri and to control their convention, then 
it followed that Congress were the sovereigns of the people Of Missouri, 
and they were not left the poor privilege of choosing masters. The 
essential attributes of sovereignty of Saying who shall be the rulers, and 
what quantity of power they should have, and how distributed, was 
taken away from the people. Time, and experience, by which all go- 
vernments improved, would be of no use* to that peoplfe it> regard to one 
part of their constitution. The independence of the State, so far as it 
could be elfected by the operation of the restriction, was gone, and all 
modification of their govemment, so far as it depended on their conslt- 
3*- 



30 

tion, was to be inhibited to them. Among the constellation of States, 
seeming to act in concert under one common head, claiming the advan- 
tages and privileges of one common Constitution, Missouri would present 
an anamolous case of a people in America, not governed by their own 
consent and free will, but by that of another ; yet it was pretended that 
this was self-government, it was, however, a limited, degraded, condi- 
tional, dependent, independence unknown to the principles and genius 
of our institutions. The very act of forming a constitution, was a sover- 
eign and independent exercise of power, resting alone for the authority 
to do so, on the free will of those concerned, and on the law of maji, 
which was paramount to all law and all constitutions, and were we to 
go back one step niore, it would be found that the election of members 
of a convention, was one of the very first independent and sovereign acts 
that a people could do ; for, was not the election of members of a con- 
vention a sovereign act, the sovereignty of the people would not be 
fepresented, which was essential in fixing first principles and establishing 
a form of government. But how did the case stand here, it was true 
that Mr. Scott was now heard, and was pleading the cause of the people 
of Missouri — yes, poorly pleading it ; but was Missouri represented here, 
had he a vote to give on this, or any other question, and was he ever to 
give his assent? It would not bind the most obscure individual in the 
land, and he was still further deprived of the privilege of entering his 
■<iissent to this measure on the journals of the House. The restriction 
under debate, was to form an irrevocable feature in the constitution of 
the State of Missouri, and Missouri was not only unrepresented in Con- 
gress, but she was to be de])rived of the privilege of being represented 
even in convention on this point — that was, she shouldnot exercise her 
free will on this as on other questions to be taken into consideration in 
the formation of her constitution, but was absolutely and unconditionally 
to submit to the restriction. This being the true state of the case, it 
j€sulted in this absurdity ; that part of the constitution of the Stale of 
Missouri was to be left to the people, subject to such alterations and 
inodifications, as time and experience should render necessary; but the 
other portion of the constitution Congress were parties to, being matter 
«f compact, and like tlie laws of the Medes and Persians, was irrevoca- 
ble and unalterable. The corollary of the most inconsistent character, 
that resulted from the restriction, waf, that a portion of the constitution 
of the State of Missouri would derive its existence from Congress, while 
another portion of the same constitution gave being to a part of Congress 
itself; where the conclusion was so repugnant to the dictates of common 
&ense, we were compelled to acknowlege that the premises were some- 
where wrong. Mr. Scott had said that an act of Congress to authorize 
the |)copi^ of Missouri to elect members and to meet in convention, was 



31 

mere ceremony, and might have been done by the territorial legislature. 
In performing this act of ceremony what were Congress about to do? 
they were about to interlope a condition, the effect of which, if Missouri 
refused to accede, was, the authorized convention of the people of Mis- 
souri was not an authorized convention, and the constitution itself 
which they had formed in pursuance of law, and by virtue of inherent 
rights, was not a convention, and every conclusion drawn from the ne- 
cessary independence essential to the act amounted to nothing. Congress 
were about to prejudge the people of Missouri : how did gentlemen know 
what provisions they intended to make in their constitution? How did 
gentlemen know whether the constitution of Missouri would be republi- 
can or otherwise ? With the aid of all their optics and political sagacity, 
they were not able to pronounce that the people of Missouri would not 
tender a constitution in every way comporting with the letter and spirit 
of the Federal Constitution, and perhaps complying with the wishes of 
gentlemen. This was not ihe time to talk of conditions : impartial 
judges always waited till the whole case was laid open, before they made 
up tiieir opinions. Congress then ought to suspend their operations until 
they had seen and examined the constitution of Missouri, it was then- 
and not till then, that Congress could be able to determine whether its 
principles were republican, and its provisions just. Mr. Scott was dis- 
posed to be charitable, but he really could not believe that gentlemen 
were serious when they contended that Congress, as the guardians or 
masters of ihe -Territory of J^issouri, had the right to dictate what 
should be the attributes of sovereignty of the Slate of Missouri hereafter 
to be formed ; he protested against the princi{)le that the representatives of 
States and the people^ could rightfully impose shackles or restrictions on 
Uie States or on the people, this would be reversing one of the plainest 
inaxi.ms, and placing the creature above the creator ; for Congress, nay, 
the Federal Constitution itself was but the creature of the people and 
of the States. Suppose the people of Missouri were to n'eet in conven- 
tion under this law of Congress, ajid to make a constitution comporting 
with all its provisions, save only the restriction, and that they were to 
reject, what would be the consequences? had gentlemen weighed them as 
it was their duty to do ? Could Congress do any thing more than refuse her 
admission? Would Missouri progress as a State government,out of the 
pale of the Constitution and your laws? Or would she resolve back to a 
a territory? A case that might lead to awful consequences, and quite 
probable to occur, might, with great propriety, be here stated for the 
consideration of members. Missouri having formed her constitution, 
proceeds to organize her government, elects her governor, establishes her 
judiciary, appoints her judges, and proceeds as a State. Congress, in 
consequence of her not complying with the restriction, affects to consider 



32 

her as a Territory, and appoints her a governor, commissiens her judges, 
and other officers, and they repair to their posts to undertake their du- 
ties. The people of Missouri say, you are notour officers, we will not be 
ruled by by you, nor will we submit to your adjudication on our rights — 
v/hat were gentlemen prepared to do f Would they shamefully retreat 
and permit Missouri to be triumphant, or would they rally an army and 
force submission at the point of the bayonet? What ! shed the blood o* 
the people of Missouri, your friends, your brothers, because they contend 
for the right of self-government, for being Americans ! That portion of 
tlie States that think Congress have not the power to impose restrictions 
on the people of Missouri, will not join in the crusade, nor will they 
pufFer Missouri to be subdued; because, if she falls in contending against 
the principles of the restriction, their turn will next come. The bayouets- 
of southern and western men, would not reach southern and western 
hearts. If It had been foretold by any one, that in the short period of 
thirty-three years after the adoption of the Federal Constitution, that 
in America the spectacle would have been exhibited of a portion of the 
people contending for the right of self-government^ and the right was to- 
them denied, he would not only have been placed amongst the false 
prophets of the day, but would have been called a madman, if not A 
fool — and yet such was tiie melancholy fact, and that too, gravely con- 
tended for on the floor of the American Congress. But this was not the 
only danger if the doctrine of the restrictionist was carried into practice ; 
there were others, that if not so immediately obvious were equally cer- 
tain ; one was, that under this latitude of construction Congress might 
go so far as to make the new States depend on Congress for all their pow- 
ers and all their privileges \ new States thus admitted, might, in the end, 
enlist on the side of the general government and swallow up the old 
States, producing consolidation ; they would naturally feel degraded 
and entertain at least d disposition to abridge the supenoi privileges of 
other States, and reduce them to a level with themselves, while the other 
side would present a view of the great embarrasfmeuts that would arise 
in defining the proper line of jurisdiction among a confederation of 
States, not possessing the same powers and privileges. Jealousies and 
distrust must follow such a state of things, that would have a tendency 
to disunion, nor was it reasonable to suppose that any State would long 
support the general government, if that government interfered with its 
domestic concerns. 

It has been lightly said that this part of the Constitution was matter of 
compromise : the framers of that instrument had taken special care not 
to interfere on those subjects where the feelings and interests of the seve- 
ral States were so much a variance. Gentlemen, however, more wise 
tkan their ancestors, wished to do that, by an act of general legislation, 



33 

v^-hich the Constitution harl thought most prudent to leave to the States 
respectively. If Missouri was not to have the right of domestic slavery, 
from whence ciiil the other States in the Union derive the right? they eu- 
ioyecl it before the confederation, they enjoyed it under the confederatioHj 
and stipulated for its duration and preservation under the Constitution — 
that Constitution which provided for, not only the States that were then 
parties thereto, but for all other new States that Congress might thereafter 
admit to a participation in the compact. Mr. Scott could see no essensial 
difference in principle, between dictating the whole or any part of a 
constitution to a new State, and the alteration or total abolition of 
the constitution of an old State : that feature, or rather that silence in 
the constitutions of some of the States, which permitted the citizens to 
hold slaves, seemed particularly to fall under the ban of gentlemen as 
anti-republican. If such was the fact, and the power contended for in rela- 
tion to Missouri was possessed, why not, at one dash, blot it out from all 
those constitutions ? why not, in the rage for universal emancipation, li- 
beiate all the Cuffccs of the nation, bring them to the hustii>gs, let them 
v6te, make them alone, or in part, eligible to all the offices in the govern- 
ment, place them under the canopy where the chairman was then sittingj 
ftx them in the judgement seats, promote intermarriages, and make us 
one people ? If Congress had the right to abolish slavery, they must have 
the convenient right to abolish the right of representation attached to 
them; why did not gentlemen go the whole? why fritter down by piece- 
meal, the rights of the slave-holding States? But look at the other side 
of this mammoth power ; he desired to bring the questitm home to gentle- 
men ; a member from Ohio (Mr. Brush) had contended that under the 
8th section of the Constitution that gave Congress the power " to provide 
for the common defence and general welfare," they could impose the 
restriction on Missouri, because he had assumed it for granted that to 
limit the negroes to certain latitudes, and to confiqe them within cer- 
tain limits, would be promoting the common defence and general wei- 
fare. Now what would contribute to the common defence and general 
welfare was mere matter of opinion, and it was not always that the 
means used produced the end; a mistake in the one was sure to defeat 
the other, and it appeared to Mr. Scott much more reasonable to suppose 
that the common defence was weakened, and the general welfare much 
more endangered, by confining the slaves within certain districts, conden- 
sing their population, and enabling them to act in concert, than to spread 
them over a vast extent of territory, distributing them in small propor- 
tions among the whites, and thus prevent the probability of insurrection, 
from a want of capacity to concentrate their lorces. If then, an occa* 
sio7ial majority of Congress had the right, under this or any other clause 
of the Constitution, to say that, in their opinion, it promoted ^he covamoat. 



34 

defence and general welfare, that slavery should not exist in certain 
States of the Union, a counter majority, at any other time, under the 
same clause of the Constitution, would have the power to declare that 
it comported with their views of common defence and general ^-elfare 
that it should exist in all the States, and that the non-slave-holding States 
should admit slaves within their borders, under pain of suspension or 
expulsion from the Union. How would gentlemen then stand affected? 
would they not then declare against this mighty power exercised, upon 
mere speculation, whether this or that measure promoted the common 
defence and general welfare of the nation. In point of fact, there was 
but iitte, if any, difference between taking away or forcing upon, any 
person or people, that which they did or did not want ; each was 
equally a violat on of their rights. 

Governments were instituted as much for the protection of tlie property 
as the person of the governed. So sacred was this principle, that in no 
instance, by the Constitution of the land, could private property be taken, 
even for public use, without compensation. But what compensation 
■was offered to Missouri for this privation of her rights ? what remunera- 
tion was offered to the slave-holding States, who had an equal interest 
in Missouri with the non-slave-holding States, for this deprivation of 
their right to emigrate to that country with their slaves ? did not the re- 
striction take from this portion of the community a part of their interest 
in that Territory, and diminish the value of the lands they had already 
purchased for themselves and their children ? In fact it amounted to a 
fraud on the purchasers; the lands had been sold while certain regula- 
tions existed, that induced them to purchase, and to pay a higher price for 
the soil; but so soon as Congress reap the advantages of these false pre- 
tences, they then, for the first time, foreclose the right of the citizens to 
take with them their hands to operate on the soil which they purchased, 
alone with that view. Between individuals in a court of justice (if there 
was any justice left in the land) money, paid under such circumstances, 
could be recovered back, and the enlorcenients of the out-standing pay- 
ments be enjoined. By the Constitution of the Union, Congress could pass 
no-cj; post facto laiv, or bill of attainder , or any law working the corrup- 
tion of bloody or forfeiture of property. The restriction in question was 
«x post facto, as regarded the Missourian, because it devested him of a 
vested right, in the liberation of his slaves ; it was ex post facto as rela- 
ted to the vested right that the purchaser of land, acquired, at the time 
of purchase, to take with him to the country any descriptian of property 
that would facilitate the improvement and cultivation of his lands : such 
was the inducement and reasonable expectation at the time of purclaase- 
Let the restriction become a law, and the emigrant would stand attaint- 
ed, and convicted of a crime that operated a forfeiture of his property.^ 



T 



if he removed to the Stale of Missouri, and took his slaves with him : 
and that amendment to the fifth article of the Constitution, which de- 
clared, that no person should be deprivtul of /(/e, liberty^ or property^ 
without due course of law, became inoperative ; and the citizen was 
devested of his property without Constitution, or law, or judge, or jury. 
Surely gentlemen were wrong, when they sought refuge for the power to 
impose this restriction, under that portion of the Constitution that autho- 
rized Congress to "regulate the inlercourse between the several States, 
and between the United S.tates and foreign governments.'' Missouri was 
not yd any portion of a foreign government ; and the right to make regu- 
lations between the several States, was essentially different from making 
a rtstrirtioTiy or regulation in respect to one particular Slate. When 
Congress acted between the several States, they had an eye to some- 
thing like reciprocity; but here there wa^none — all the advantages and 
piivileges were taken from Missouri, and none given in exchange. By 
tlie {irinciples of tlie Revolution, Missouri could nol be taxed without a 
representation and lier own consent, yet she had been taxed during the 
late war, and had mobt cheerfully furnished her quota of men and of 
money, without murmuring, or exhibitiug one symptom of discontent. 
So much for a people's surrendering the smallest portion of their rights : 
gentlemen, presuming on their patriotism and love of country, were now, 
in continuation, about to tax them out of their rights and privileges^ 
and leave them without the means of redress. 

Mr. Scott would ask gentlemen whether the people of Missouri were 
to be consiilered free and independent before the formation of their Con- 
stitution and admission into tlie Union.'* or, whetlier they became free 
and iudrpendcnt only after their adniission as a State? If they became 
free and independent alone I)y the act of admission, then it would follow 
iliat they were not competent to form a Constitution, because they did 
not possess the free will and sovereignty tliat was essensial to such an 
act; and, as tlie general government was confederated, and formed by 
compact, ftlissouri could not be considered capable of entering into the 
tompactive Union, because she was not a free agent. But if, on the 
other hand, Missouri was to be considered as free and independent be- 
fore she formed a constitution and was admitted into the Union, how 
was. she to lose tliat independence after her Constitution was formed? 
The case had already been supposed, that Missouri, having formed her 
Constitution, proceeded to her operations as a State ; he would now put 
it to gcntljmen in another shape, and inquire if they did not intend to 
use foice, to what other description of process they would resort to effect 
a repeal of the charier of Missouri? A quo warranto had been named ! 
Wiiat I declare Missouri out of the pale of the Constitution, not amena- 
ble to your laws, not a member of the federal family, and consequently, 



ViOt v/ithin ihe jurisuiclion of your courts ; and yet to issue, from one of 
those very courts, a quo warranto, to inquire by what authority the peo- 
ple exercised the right of self government? Mr. Scott said that if it was 
reserved for him to make a return to that writ he would endorse upon 
it the Decltiration of Independence, and reply that the right was from 
God. Gentlemen v/ould find, that if such an unhappy state of tilings 
was produced by the restriction, it w^culd be necessary to issue some 
other description of process to deprive that people of their right of self 
government. 

It certainly did not require any argument to prove that Congresss 
could not incorporate a people and make them a State without their con- 
sent, and if they could not, it followed that the converse of the proposi- 
tion was true, thftt it was their own free will and consent, that made them 
a State, and not the art of Congress. Members, however, had taken the 
other ground, and had argued as though the law in debate was to con- 
stitute the State of Missouri; but the manner of its application was 
indeed very singular, it was thus: That if the constitutiojj of' Missouri 
made, in pursuance of this law, turned out to suit Congress, then the 
State and the people were to be considered as ex post facto independent^ 
but if that constitction on presentation was not palatable, then this 
legerdemain policy did not attach to the condition of Missouri, and she 
was to be considered as not having acted at all. The same laws and 
principles of eternal justice, that ought to regulate individuals in their 
private transactions, ought also to be regarded by States and nations : 
one of these was, that a bonder an indenture entered into under duress 
was not bin'Ung on tho party. My a parity of reasoi:ing, was Missouri 
to form a constitution under the ban of the nation, would it be binding 
on her after admission: If the ground taken by gentlemen, practically 
speaking, be correct, that all negroes and their increase are natiiralli/ free, 
why dragoon Missouri into a constitutional acknowledgment of the fact? 
Why make them declare what the law of nature had already declared ? 
If, on the other hand, the attitude assumed be indefeasible, why enact 
u restriction, that the State could turn round and repeal? Why produce 
such an unpleasant collision betwicn the federal and State authoiities? 
It was, indeed, matter of regret, to see gentlemen persevere in spending 
their time and the people's money in legislating to no effect, as though 
they were deputed here to rivet, either by direct or indirect means, the 
shackles on a portion of their fellow citizens. Missouri did not intend, 
^y any act of hers, to furnish the argument, that she had consented to 
remain in, or to return to, vassalage. And was she to meet and form a 
constitution under »uch circumstances, and then at any subsequent pe- 
riod to attempt to alter the ret triction or shake off this odious badge of 
degradation and distrust? the advocates of the measure would then say, that 



;3:t 

\!fb€tft«r tfh^y had the right to impose the restriction or not, Xlissouii iuid 
consented to it, that the people had voluntarily entered into terms, ar»*i 
that they and all posterity were bound on the snhject. This would Be 
an unwarrantable, if not an unwothy exercise of power and cunr^ingon 
the one hand, against a supposed vrcakncs? and simplicity on the other. 
Thif, in fact, woulrT only be a supposi'ron; for a people contending for 
tTfeir rights were always strong. It was his duty to apprise gonilerneu 
'of the true state of tho case; he owed it to the people he roprcsenled\ 
To spenk their sentiments and tlicir dct^rmintstionsj of which he was wefl 
advJBcd — and he owed it to the roprcsoniativesof the nation to tell them 
the truth, however rash it might be deemed, becau&e the people thej 
reprepented might one day bleed, in contending for and against luis rc^ 
striction. But the truth was, that although the people of Missouri were 
accustomed to look to Congress for many laws, and as tiic dispensers o\ 
all good, they had not lobi the (.ignity of their natures any more than the 
citizc.is of Statep, who were accustomed to look to thyir own States for 
supreme autliority. The independence of that people could only be taken 
ftom them by fonqutst or consent — he dU not deuy tho power of ihi; 
general government to cmiquer or compel submission ; but consent to 
this restriction they never would. They would not acknowledge tliat 
independence was not their birth-right with other?. Had the Territory 
of Missouri sufGcicnt physical strength to assert her rights, no attemp?. 
woidJ then be made to imijose this oi auy other restriction ; her approaclj 
fT good fcllowsliip antl the Union would be hailijd from afar; she would 
be greeted with smiles, and laughed to scorn. 

The authority now contended for would give the equal right to dis» 
tribute and regulate all th« powers of the internal government of Mis- 
souri. Under this alarming latitude of construction. Congress might 
give to the rulers of the State all the power?, and produce an aristocra- 
cy ; or, they mi^^ht reserve to the people all authority, and yield an ac- 
rogant mobocracy : indeed what ndght they not do in the moments of 
wibtr.ken philantrophy, and misguided zeal for liberty and equality ? 
Gentlemen might not only prohibit the further introduction of slaves info 
>Iissouri, they might ntt only emancipate all those that were now there, 
but they might violate the most sacred principles of the Constitution, 
and establish a standard religion ; fcr it was but one step, from th£ 
violation of the rights of propcily to the violation of the rights of 
conscience. 

Mr. Scott said, that this was not a question "whether slavery sbou'*!- 
exist.'" but merely where should the slaves, now jn America, be pei;- 
mitt.'d to reside.' the mistake of this proposition seeoied to have measur- 
ably produced all this conteution and strife. V\'.as this aiv ori>.'inal cjucs- 
tfoHy whether we should subject a portion of our felJow t>cing£ ^o a sfarc 



S8 

of servitude and degradation, he believed that the people of Missouri 
from their innate love of liberty, equality, and independence, would be 
among the first to declare against the principle. But the absolute condi- 
tion of that rlescription of persons ditl exist, and actually. had existed, long, 
before even the first settlements were formed in Missouri ; and if there 
were any advantages to be derived from holding that description of pro- 
perty, the people of Missouri, as citizens of the United States, had the 
right, in common with others. Congress, in deciding that they should not 
be introduced, as one of the species of property, under our constitution 
and laws, were doing that section of the country a wrong, because it placed 
them, in powers and privileges, below other States in the Union; and when 
ft wrong was meditated on any people, they alone were the judges : such 
had been the current doctrine, and so considered by the United States 
themselves, when they determined on that course, with regard to Great 
Britain, which led to American Independence. If gentlemen were not pre- 
determined to fix this restriction on Missouri, and would take the trouble 
to raoiint up to first principles, they would find that it was not a mere ques- 
tion of. power, growing out of the construction of the Gonstitution, but; 
•thai there w^b another law, paramount to all written rules and regula- 
tions, that operated on and controlled the question — it was the laic of man ; 
it was his eternal and indefeasible right to self-government. It was an 
idle calculation to believe that- the Stale of Missouri would lose sight 
r>f this law of man in adjusting their constitution or i^ntending for their 
rights. It was true that the people of Missouri had been a long time in 
pupilage and wardship,. but tlicy had never, been in bondage. Although 
derived from Spain,. the citizens were not the poor remnant of Spanish 
despotism — the great portion of them had been boruinaland of liberty f- 
they are your relations^ yoor friends^ your brothers ; each State in the 
Union had soniC interest there ;. and they were freemen, who knew how 
io appreciate, mu-ntain, and^ defend ihcir rights. A maxim might with 
groat propriety be here applied — it was, that whenever illegal or impro- 
per objects were to be attained, that-; they, drove the supporters of them 
to improper and illegal means, to effect, the object. The parliament of 
threat Britain, although deemed omnipotent, never had, in leference to ^ 
the colonieF, attempted any tiling that would bear a comparison with 
this restriction, though the powers of Congress were express, limited, and 
defined. The force of precedent had been illustrated in the course of 
Ihe debate. Let this restijction prevail, and then states beware ; 
for it was thus that? a tyrarit,. about to subjugate the; liberties^ of ;a peo-- 
pie, selected an obscure individual, whose fate would excite no aiarra^v 
and, in his destruction, fixed an example, to which, ihiturn, the most: 
lordly were tau^iit to bow. And thus, Congreis- sekcted a distant and 
fSjfeble t<,rritory, whose murmurs could be but.iudistinctly heard, just a'er: 



39 

the verge of heaven; and, in the sacrifice of its rights, and prostratioji 
of its authority, establishcda precedent that saps the foundation of Sta^ 
authority; and produces consolidation, or, in the endy disunion. 

Mr. Scott remarked, that he had much more to say, but, from indis* 
position and exhaustion, was unable to proceed ; the committee were 
also fatigued ; the question of expedience, and other topics, he had left 
entirely untouched ; but, from the laboured and able investigation the 
subject had received, he was willing to trust the rights, the happiness, 
the fate of Missouri, with the House. Her present prosperity and future 
greatness depended on the decision : if gentlemen could take the power, 
he entreated them not to exercise it ; the affections of the peopl* of 
Missouri had been put to many severe trials, in the course of eighteen 
jtjars, but they could not endure for ever ; and he appealed to gentlemen't 
unquestionabled knowledge of right, and native love of justice, notttaiH 
♦■his reslriciion to the list of grcivanccs of thar people-. 



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